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American Journal of Public Health logoLink to American Journal of Public Health
. 2013 Nov;103(11):1962–1967. doi: 10.2105/AJPH.2013.301319

Overcoming Legal Liability Concerns for School-Based Physical Activity Promotion

Sara Zimmerman 1, Karen Kramer 1, Matthew J Trowbridge 1,✉
PMCID: PMC3828700  PMID: 24028226

Abstract

Schools have been identified as a priority environment for physical activity promotion as a component of efforts to help prevent childhood obesity.

A variety of school-based environmental and programmatic strategies have been proven effective in promoting physical activity both on-site and in the surrounding community. However, many schools are deterred by fears of increased risk of legal liability for personal injuries.

We examine 3 school-based strategies for promoting physical activity—Safe Routes to School programs, joint use agreements, and playground enhancement—from a tort liability perspective, and describe how schools can substantially minimize any associated liability risk through injury prevention and other strategies. We also recommend approaches to help schools overcome their liability concerns and adopt these critically needed healthy school policies.

LACK OF REGULAR PHYSICAL activity is among the top preventable risk factors for premature mortality in the United States, attributable in large part to its contribution to the childhood obesity epidemic. Many US children fail to get even the minimum 60 minutes of recommended daily physical activity.1 This lack of physical activity has serious consequences. Not only does it contribute to the current childhood obesity epidemic,2 but it also causes children to experience more stress, poor sleep, and even depression.3 Conversely, physical activity can positively affect student behavior, cognitive skills, and academic achievement.4

Schools can play a significant role in increasing physical activity rates among children in a community.5 Not only do children spend many of their waking hours at school, but schools play an important role in fostering healthy habits. Initiatives such as (1) Safe Routes to School (SRTS), which encourages walking and biking to school; (2) joint use (or shared use) agreements, which make school playground and recreational facilities publicly available during nonschool hours; and (3) the use of design strategies and equipment to provide more engaging (“active”) school playgrounds, have all been shown to help increase levels of student physical activity.

Unfortunately, many schools fail to permit or actively promote physical activity approaches like SRTS or joint use agreements, through fear of increased exposure to lawsuits for personal injuries.6 As we explain, however, such fears are often overblown. If schools take a sensible approach to integrating injury prevention strategies into healthy school initiatives, any added risk should be minimal at most, and some schools may even reduce their overall risk portfolio.

Starting with a brief overview of the laws that govern personal injury claims, we examine these 3 initiatives from a tort liability perspective, describing how the law applies to each one and how schools can minimize any associated liability risk through injury prevention and other strategies. Finally, we identify specific strategies to help schools overcome their liability concerns and adopt critically needed healthy school policies.

OVERVIEW OF GOVERNING LAW

The area of law governing personal injuries (known as “tort law”) has the dual purpose of compensating victims of negligence (for monetary losses, medical costs, and pain and suffering) and deterring negligence.7 Negligence occurs when a person or entity fails to act with reasonable care under the circumstances.

Elements of Negligence

Because torts are governed by state law, the specific rules governing personal injury cases vary by state. All states, however, follow certain basic principles. Thus, every state requires a person suing a school for negligence to prove 4 elements. The case of Jennifer, a student injured while crossing an intersection at her school,8 illustrates each element.

  1. Duty. In general, public schools have at least some legal duty to act with “reasonable care” toward students during the school day, although the extent of that duty varies widely among states. In Jennifer’s state, the school had a duty to take reasonable steps to protect students from dangerous conditions on school property, including those that create a substantial risk of injury on adjacent property.

  2. Breach. Jennifer showed that the school failed to comply with that duty by failing to act with reasonable care under the circumstances. The busy intersection where Jennifer was injured had no traffic signal, and the school had been warned it was dangerous. Nonetheless, the school encouraged students to enter the school via this intersection by deliberately creating an opening in the school fence adjacent to the intersection. This unreasonable conduct created a dangerous condition, particularly given that it diverted students from an alternative, safer intersection nearby.

  3. Causation. Jennifer showed that the breach caused her to use the intersection and thus caused her injury. She also showed that it was reasonably foreseeable that the school’s breach would lead to the type of injury she suffered.

  4. Damages. Jennifer showed that she suffered physical injury as a result of the school’s breach of its duty to act with reasonable care.

The duty to exercise reasonable care does not, of course, require schools to guarantee safety; it is simply a duty to act reasonably in light of the specific circumstances, including the likelihood of the injury occurring and generally accepted management standards for schools. In short, negligence is a practical, commonsense concept that turns on whether

the school did something that a reasonable school would not have done, or failed to do something a reasonable school would have done.9

Governmental Immunity From Tort Liability

Even when a plaintiff such as Jennifer can prove all of these 4 enumerated elements, a public school may still be fully or partially shielded from tort liability because of the legal doctrine of governmental immunity. Governmental immunity precludes a plaintiff from recovering even if negligence is shown. Although this immunity means that people who have been hurt because of government negligence have no recourse, the benefit of immunity is that it protects the public purse and provides some breathing room for government activity.10

Each state, however, individually determines the scope of governmental immunity, which has led to a patchwork of different levels of protection around the country.11 In some states, like Georgia and California, the immunity can be very broad, providing public schools with an extensive shield from liability.12 In other states, the immunity is less expansive. Some states, for example, make a distinction between negligence that occurs while a school is carrying out its “governmental function” (in which case immunity is available) and negligence that occurs when a school is engaged in a “proprietary” activity (immunity not available).13 Other states distinguish between a school’s discretionary, policy decisions (protected by immunity) and basic operational tasks such as maintenance (not protected).14 Even among states that follow the same general approach, courts vary in how they interpret key concepts such as what constitutes a “discretionary policy.”15 Finally, many states also permit tort claims for injuries caused by defective or dangerous conditions on public property.16

In short, although governmental immunity for public schools ranges from very broad to relatively narrow, depending on the state, immunity provides public schools with some degree of protection from liability attributable to negligence.17

SAFE ROUTES TO SCHOOLS PROGRAMS

SRTS initiatives encourage local schools to establish programs that promote walking and biking to school.18 Programs can range from sponsoring an annual “Walk or Bike to School Day” to organizing “walking school buses” or “bicycle trains” in which adults supervise groups of children as they walk or bike to school together. Not only does walking or biking to school help students become more fit physically and mentally, but schools also benefit from having healthier students.19 Although more than 12 000 schools have adopted SRTS programs since the program started in 2005,20 thus far there have been no reported tort cases against schools involving SRTS programs.

Applying Tort Law

Schools can either sponsor and implement an SRTS program, or just sponsor it and let an outside entity or parents implement the program. Sponsorship includes the decision to allow a SRTS program, informing families about it, and providing funding or other support, whereas implementation involves setting up and running the program, including supervising the walking buses or bicycle trains. Although governmental immunity in all states appears to cover schools for simply sponsoring a SRTS program,21 whether that immunity extends to implementation varies depending on whether the state provides schools with broad or narrow governmental immunity and the specific facts at issue.22

Schools in narrow-immunity states can minimize their liability risk by using parents or an outside organization to implement the program, in which case the school will not be responsible for how the program is run.23 This approach, however, can also decrease a program’s effectiveness, so schools should consider all the factors carefully before choosing this approach because of liability concerns. Of course, if a sponsoring district becomes aware of a safety problem with the program—for example, a volunteer who fails to supervise children adequately—it should take prompt action to address the problem or discontinue sponsorship.

If the school implements the SRTS program itself, and immunity is unavailable, any claim that an injury was caused by the program would be governed by the same tort law principles that normally apply—that is, the duty to exercise reasonable care. No higher or special duty applies. Thus, even schools that lack immunity should be able to implement an SRTS program without significantly increasing their liability risk so long as they take the commonsense approach of incorporating injury prevention strategies into their program. Indeed, injury prevention is the key to avoiding liability and keeping students safe because (1) it reduces the risk of an injury occurring in the first place and (2) even if an injury does occur, it is much less likely that a school that takes safety precautions will be found to have acted negligently.

Injury Prevention

Schools can incorporate injury prevention into their SRTS program by identifying potential dangers associated with their program and then taking reasonable precautions to avoid them. For example, schools should make sure that children walking to school need not cross a school parking lot or navigate between cars that are dropping off other children. Schools can also identify possible dangers (such as broken sidewalks or inadequate crosswalks) on likely routes and ask the city to address them. Similarly, schools that provide maps with suggested routes can engage city staff to help identify the safest routes, since providing good routes to school is a local government responsibility. Schools that rely on parent volunteers or another entity for implementation can screen and train volunteers. Finally, schools can invite police departments and nonprofits to provide bicycle and pedestrian safety training.24

In sum, the liability risks associated with SRTS programs are small. First, as noted, SRTS programs have not been implicated in any reported tort cases. Second, even where immunity is lacking, liability risks can be greatly minimized through injury prevention techniques.

SRTS programs that incorporate injury prevention can actually reduce, rather than increase, a school’s overall risk portfolio by systematically addressing hazards, reducing car traffic near schools, and increasing safety awareness.25 For example, the SRTS program in the town of Flippin, Arkansas, includes funding for (1) flashing traffic lights along roads adjacent to the public schools and (2) bicycle and pedestrian safety education for all students, both of which will likely decrease the overall risk of school-related injuries.26 And in Jennifer’s case, had her school participated in SRTS and incorporated injury prevention strategies, it would likely have identified the intersection and fence opening as a danger, remedied the situation, and possibly avoided Jennifer’s injury.

JOINT USE AGREEMENTS FOR SCHOOL FACILITIES

Many schools have recreational facilities (e.g., playgrounds, basketball courts, playing fields, and pools) that could provide great opportunities for physical activity for students and the community year-round, but instead sit idle behind locked gates all summer, on weekends, and on holidays. The problem is particularly acute in communities of color and low-income neighborhoods. Not only are recreational facilities scarcer in such communities,27 but young people of color suffer disproportionately from the obesity epidemic.28 Making school recreational facilities publicly available during nonschool hours provides a tremendous new community resource that directly leads to increased physical activity. Indeed, people with ready access to parks or recreational facilities exercise 38% more than those who do not.29

Making Facilities Accessible

Schools can provide this resource by combining forces with city government through a joint use agreement. Such agreements may provide that the city will take responsibility for opening and closing one or more of the school’s indoor or outdoor recreational facilities during specified periods when school is out of session. In exchange, the city often agrees to provide maintenance or other services such as portable bathrooms or lifeguards. Joint use agreements may also permit a city department (such as Parks and Recreation) or a third party (e.g., a youth organization or sports league) to offer camps or other activities on-site.30 Because making school facilities publicly accessible is far quicker and less expensive than constructing them, many cities are discovering that joint use agreements are an efficient and cost-effective way to provide urgently needed recreational services. At the same time, schools benefit from healthier students and stronger community ties. Because joint use agreements are a win-win situation for both city and school, they are becoming increasingly popular.31

Applying Tort Law

As with SRTS programs, schools may enjoy full or partial governmental immunity from negligence claims relating to joint use agreements (e.g., claims of poor maintenance, equipment defects, or failure to supervise), but the degree of protection will vary by state.

Joint use agreements may also benefit from another type of protection known as recreational user laws. Although many states originally enacted these laws to encourage rural landowners to make their land publicly accessible for hiking and camping, their scope has since been expanded in many jurisdictions to include urban and public land and a broader range of activities.32 Some states, like Tennessee, may even have a recreational user law specifically aimed at joint use agreements.33 If a recreational user law applies, a school’s legal duty is substantially reduced from the usual duty to exercise reasonable care to a much lower duty, such as the duty to avoid “willful and wanton” injury and warn of known, but hidden, hazards.34

If neither immunity nor recreational user laws apply, the school may be able to address any liability concern by structuring the joint use agreement to require that the city (or other participating entity) agree to wholly or partially reimburse the school for any liability incurred under the agreement. This concept—an agreement by one entity to compensate another for financial losses—is known as indemnification. Alternatively, the agreement could require the city or participating entity to pay any extra insurance costs.

Injury Prevention

Finally, as with SRTS programs, schools can simultaneously minimize any increased liability risk and enhance student safety by incorporating injury prevention strategies. Liability for injuries arising out of a joint use agreement would be governed by the standard tort law duty to exercise reasonable care or, in some states, by an even lower standard of care.35 Implementing basic injury prevention strategies, many of which should already be in place (such as regular inspection and maintenance of school equipment), helps avoid liability by showing the exercise of reasonable care while also reducing the chance of an injury in the first place.36

ACTIVE SCHOOL PLAYGROUNDS

The youth obesity epidemic has also focused attention on the fact that some playground designs encourage high levels of physical activity, whereas others discourage them. Moreover, relatively minor interventions can have a major impact. For example, simply providing additional equipment, such as jump ropes, balls, hula hoops, or “loose parts” like giant foam blocks and wagons, encourages active play.37 The same effect can be obtained by marking playground surfaces with lines for games (e.g., hopscotch, four square), painted graphics (e.g., mazes, castles, and pirate ships), and distance markers (e.g., ¼-mile markers).38 “Zoneparc” playgrounds, which divide the yard into 3 color-coded areas for different activities (so some activities do not dominate the whole play area), also encourage more active play by more students.39 Simply renovating an old, drab playground can increase physical activity.40 And if the community is included in the process, there is the added benefit of strengthening community ties.41

Applying Tort Law

Claims for injuries stemming from active playground initiatives are decided under the same reasonable care standard applicable to all school playground injuries. Importantly, although playground injuries are common, it is unlikely that the active playground interventions noted here would significantly increase a school’s tort liability risk. First, most playground injuries involve falls,42 and many playground interventions do not require additional climbing structures that create new risks of falling. Second, the types of activities invited by these interventions are generally of the same type that ordinarily occurs on playgrounds. Thus, if a school has adequate existing insurance, it may already cover any injuries that result from active playground interventions.

Injury Prevention

As emphasized in the section on safe routes to school, the key to minimizing liability risk is injury prevention, which should be integrated into active playground planning. For example, if schools introduce new equipment or redesign their playgrounds, they should comply with the playground safety guidelines provided by the Consumer Product Safety Commission.43 Supervision is also a vital injury prevention strategy, since inadequate supervision contributes to many playground injuries.44 Regular inspection, maintenance, and repair of playground equipment is another important form of injury prevention. If injury prevention strategies are properly integrated with active playground planning, they will benefit the school environment more generally, reducing the school’s overall risk portfolio.

THE ROLE OF INSURANCE

Even under the best of circumstances, schools can never eliminate all risk of liability. Thus, as an added layer of protection, school districts should, if possible, make sure that their insurance coverage applies to all physical activity initiatives. Alternatively, if the school is partnering with another organization to implement an SRTS program or joint use agreement, the partnering organization may be able to (1) provide insurance, (2) pay for the cost of additional insurance, or (3) partially or fully indemnify the school. In California, for example, PTA insurance can provide coverage for some SRTS liability risks if the PTA has endorsed a SRTS program.45

In a minority of states, governmental immunity for tort claims is waived up to the policy limits if the claim is insured.46 Although this factor might seem to weigh against obtaining insurance, it is very difficult for schools to assess in advance the exact scope of protection that government immunity will provide. The case law can be complex and unpredictable. Thus, as a practical matter, even in those states that have an insured liability exception, schools often find it preferable to maximize their insurance coverage to the extent possible.

MOVING FROM THEORY TO REALITY

Several strategies can be used to overcome the “fear of liability” barrier to healthy school policies.47 First, such fears are often based on a lack of accurate information. Providing decision-makers with a clear assessment of the governing law,48 some context regarding similar risk that the school already accepts, and a thoughtful analysis of the risks and benefits will help put the risks in perspective and thus assuage concerns. Identifying injury prevention strategies can also help schools understand how they can minimize their risk.

Second, many schools find it easier to adopt initiatives that have already proven successful elsewhere. Thus, providing examples of other schools that have the same or a similar program is extremely helpful. Oakland, California, for instance, followed the example of the Boston Schoolyard Initiative to create the Oakland Schoolyard Initiative, which revitalizes school grounds and opens them for public use.49

Third, confirm that the initiative or program falls under existing insurance coverage or identify what additional insurance is needed.

Fourth, find ways to allow the school to become vested in, and feel ownership over, the initiative. This can be facilitated by including school officials in developing the program, and finding ways for the school to take credit for and showcase the benefits of the program, through articles, awards, and other publicity.

Finally, engage the whole community—parents, teachers, local city and school elected officials, and public health and environmental advocates. If the community is involved and strongly supports the program, the school is more likely to embrace it, and the program will more likely be successful.50

CONCLUSIONS

Schools take on liability risks every time they adopt a program or engage in any activity. Thus, the important question is not whether a new program creates any risk of liability; rather, schools must ask whether the benefits of the activity or program justify the risk involved. In this case, the benefits of healthy school programs are compelling. The decline of physical activity in American life has potentially serious consequences for students, not only affecting academic performance but creating lifelong health risks. SRTS, joint use, and active playground programs are all interventions that are both low-cost and effective.

At the same time, however, physical activity should be increased safely. Schools can accomplish this goal by integrating injury prevention strategies into healthy school initiatives. Doing so also minimizes any liability risk because injury prevention not only reduces the risk of an injury occurring in the first place, but also helps schools show that they have satisfied the tort duty to act with reasonable care, negating any tort liability even if an injury occurs. It thus behooves injury prevention and active-living professionals to coordinate their efforts as much as possible.51 In light of the reductions in liability risk provided by injury prevention strategies, immunity, insurance, risk-shifting, and recreational user statutes, any remaining minor threat of liability is far outweighed by the vital benefits children gain from physical activity.

Students lose out when schools fail to support physical activity as well as when they put programs in place without injury prevention goals. Healthy school policies with a focus on injury prevention protect students from injury while supporting student health and also protect schools from liability, making schools and students into winners.

Acknowledgments

This research was supported in part with funding from the Robert Wood Johnson Foundation.

Human Participant Protection

No protocol approval was necessary because this research did not involve human participants.

Endnotes

  • 1. Centers for Disease Control and Prevention, “Adolescent and School Health: Physical Activity Facts,” last updated June 7, 2012, http://www.cdc.gov/healthyyouth/physicalactivity/facts.htm (accessed May 2, 2013)
  • 2. “Over the past 20 years, obesity rates in US children and youth have skyrocketed. Among children ages 6 to 11, 15.8% are overweight (≥ 95th percentile body mass index [BMI] for age) and 31.2% are overweight or at risk for overweight (≥ 85th percentile BMI for age). Among adolescents ages 12 to 19, 16.1% are overweight (≥ 95th percentile BMI for age) and 30.9% are overweight or at risk for overweight (≥ 85th percentile BMI for age).” R. R. Pate, M. G. Davis, T. N. Robinson, E. J. Stone, T. L. McKenzie, and J. C. Young, “A Leadership Role for Schools: A Scientific Statement From the American Heart Association Council on Nutrition, Physical Activity, and Metabolism (Physical Activity Committee) in Collaboration With the Councils on Cardiovascular Disease in the Young and Cardiovascular Nursing,” Circulation 114 (August 2006): 1214–1224, http://circ.ahajournals.org/content/114/11/1214 (accessed May 2, 2013)
  • 3. MedlinePlus, National Institutes of Health, “Exercise for Children,” last updated May 1, 2013, http://www.nlm.nih.gov/medlineplus/exerciseforchildren.html (accessed May 3, 2013); American Psychological Association, “Changing Diet and Exercise for Kids,” http://www.apa.org/topics/children/healthy-eating.aspx (accessed September 21, 2012); C. Rothon, P. Edwards, K. Bhui, R. M. Viner, S. Taylor, and S. A. Stansfeld, “Physical Activity and Depressive Symptoms in Adolescents: A Prospective Study,” BMC Medicine 8 (2010): 32, http://www.biomedcentral.com/1741-7015/8/32 (accessed May 3, 2013)
  • 4. The Association Between School-Based Physical Activity, Including Physical Education, and Academic Performance (Atlanta, GA: Centers for Disease Control and Prevention, 2010), http://www.cdc.gov/healthyyouth/health_and_academics/pdf/pa-pe_paper.pdf (accessed May 3, 2013); K. M. Pollack, C. Kercher, S. Frattaroli, C. Peek-Asa, D. Sleet, and F. P. Rivara, “Toward Environments and Policies That Promote Injury-Free Active Living—It Wouldn’t Hurt,” Health & Place 18, no. 1(2012): 106–114.
  • 5. Institute of Medicine, Accelerating Progress in Obesity Prevention: Solving the Weight of the Nation (Washington, DC: The National Academies Press, 2012), 329–378. [PubMed]
  • 6. See, for example, J. O. Spengler, M. S. Carroll, D. P. Connaughton, and K. R. Evenson, “Policies to Promote the Community Use of Schools: A Review of State Recreational User Statutes,” American Journal of Preventative Medicine 39, no. 1(2010): 81–88. “Liability concerns are cited as one of the greatest barriers to establishing joint-use agreements.” California Pan-Ethnic Health Network (CPEHN), Unlocking the Playground: Achieving Equity in Physical Activity Spaces (Oakland, CA: CPEHN, 2009), http://www.cpehn.org/pdfs/Joint%20Use%20Brief.pdf (accessed May 3, 2013)
  • 7. W. L. Prosser and W. P. Keeton, eds., Prosser and Keeton on the Law of Torts, 5th ed. (St. Paul, MN: West Publishing Co, 1984), 25.
  • 8. Joyce v Simi Valley Unified School District, 110 Cal App 4th 292 (2003)
  • 9.Baker T, Amerikaner D, Carroll E Liability Risks for After-Hours Use of Public School Property to Reduce Obesity: A Fifty-State Survey (Oakland, CA: National Policy & Legal Analysis Network to Prevent Childhood Obesity, 2008), 3–4, http://changelabsolutions.org/publications/liability-schools-50-states (accessed May 3, 2013)
  • 10. See, for example, Duson v Midland County Independent School District, 627 SW2d 428 (Tex Ct App 1981) (noting payments of private claims would divert money from schools and impair the quality and availability of public education)
  • 11. Baker et al., Liability Risks. In most states, the type of immunity available to public schools is called governmental immunity. In some states, the public school districts are classified as part of a state agency, in which case the applicable immunity is called sovereign immunity. As a general rule, sovereign immunity is stronger than governmental immunity.
  • 12. See, for example, Kaylor v Rome City School District, 600 SE2d 723, 726 (Ga Ct App 2004)
  • 13. See, for example, McNees v Scholley, 208 NW2d 43 (Mich Ct App 1972) (holding that layout of school bus routes and stops is a “governmental function” and thus covered by immunity); 57 Am Jur 2d Municipal, County, School, and State Tort Liability §43 (2012)
  • 14. Baker et al., Liability Risks, 8.
  • 15. See generally Allen E. Korpela, Modern Status of Doctrine of Sovereign Immunity as Applied to Public Schools and Institutions of Higher Learning, 33 A.L.R. 3d 703 (1970)
  • 16. Baker et al., Liability Risks, 7–9. For information about the scope of sovereign or governmental immunity for school districts in your state, contact a local attorney with expertise in school law, your school district’s attorney, or your state affiliate of the National School Board Association’s Council of School Attorneys.
  • 17. Some states also place limits on the amount of money recoverable in tort cases brought against public schools. Baker et al., Liability Risks, 14, notes 32–33.
  • 18. See Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub L No. 109-59, §1404(2005); M. Pedroso, Safe Routes to School: Helping Communities Save Lives and Dollars: Policy Report 2011 (Safe Routes to School National Partnership, 2011), http://www.saferoutespartnership.org/media/file/SRTSNP-2011-Policy-Report.pdf (accessed May 3, 2013). Participating schools are eligible for federal funding for safety and traffic improvements near the school.
  • 19. See, for example, B. A. Sibley and J. L. Etnier, “The Relationship Between Physical Activity and Cognition in Children: A Meta-Analysis,” Pediatric Exercise Science 15, no. 3 (2003): 243–256; Getting Students Active Through Safe Routes to School: Policies and Action Steps for Education Policymakers and Professionals (Safe Routes to School National Partnership, 2010), 6–12, http://www.saferoutespartnership.org/media/file/EducatorsGuide.pdf (accessed May 3, 2013); S. G. Trost, Active Education: Physical Education, Physical Activity and Academic Performance (San Diego, CA: Active Living Research, 2009), http://www.activelivingresearch.org/activeeducation (accessed May 3, 2013); K. K. Davison, J. L. Werder, and C. T. Lawson, “Children’s Active Commuting to School: Current Knowledge and Future Directions,” Preventing Chronic Disease 5, no. 3 (2008): A100, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2483568 (accessed May 3, 2013)
  • 20. Fall 2011 Safe Routes to School Program Tracking Brief (Chapel Hill, NC: National Center for Safe Routes to School, 2011), http://www.saferoutesinfo.org/sites/default/files/page/Fall%202011_1_0.pdf (accessed May 3, 2013)
  • 21. See, for example, Nguyen v State, 788 P2d 962, 964-65 (Okla 1990) (explaining that “initial policy level or planning decisions are considered discretionary and hence immune” but “operational level decisions made in the performance of policy are considered ministerial and not exempt from liability”). For more information about the extent of governmental immunity for school districts in your state, contact your school district’s attorney.
  • 22. Compare Downing v Brown, 935 SW2d 112, 114 (Tex 1996) (immunity would likely apply) with Robinson v City of Bartlesville Board of Education, 700 P2d 1013, 1015-16 (Okla 1985) (immunity would likely not apply)
  • 23. In some states, nonprofit organizations may qualify for a defense of charitable immunity. See, for example, University of Virginia Health Services Foundation v Morris, 657 SE2d 512, 517 (Va 2008)
  • 24. Solano County, California, has also found that providing parent permission slips for students participating in the Safe Routes to School walking school bus program significantly assuaged school (and parent volunteer) fears of liability, and thus was very helpful in making the program successful; Robin Cox (Solano County Public Health Department), in discussion with Sara Zimmerman (ChangeLab Solutions), July 2012. For additional practical tips for minimizing liability, see ChangeLab Solutions, National Policy and Legal Analysis Network to Fight Childhood Obesity (NPLAN), Safe Routes to School: Minimizing Your Liability Risk (Oakland, CA: NPLAN, 2010), http://changelabsolutions.org/publications/SRTS-resources (accessed May 3, 2013)
  • 25. K. Gavin, Safe Routes to School: Putting Traffic Safety First—How Safe Routes to School Initiatives Protect Children Walking and Bicycling (Safe Routes to School National Partnership, 2009), http://www.saferoutespartnership.org/sites/default/files/pdf/Safety_report_final.pdf (accessed May 3, 2013) (discussing SRTS strategies that promote injury prevention)
  • 26. Safe Routes to Schools: Case Studies Around the Country (Chapel Hill, NC: National Center for Safe Routes to School, 2010), 11, http://www.saferoutesinfo.org/sites/default/files/resources/srts_case_studies.pdf (accessed May 3, 2013)
  • 27. P. Gordon-Larsen, M. C. Nelson, P. Page, and B. M. Popkin, “Inequality in the Built Environment Underlies Key Health Disparities in Physical Activity and Obesity,” Pediatrics 117, no. 2 (2006): 417–424; Lisa M. Powell, Sandy Slater, and Frank J. Chaloupka, “The Relationship Between Community Physical Activity Settings and Race, Ethnicity and Socioeconomic Status,” Evidenced Based Preventive Medicine 1, no. 2 (2004): 1–2, 135–144, http://impacteen.econ.uic.edu/journal_pub/pub_PDFs/EBPM-1-2-Powell%20et%20al1.pdf (accessed May 3, 2013)
  • 28. US Department of Health and Human Services, Assistant Secretary for Planning and Evaluation, “Childhood Obesity,” http://aspe.hhs.gov/health/reports/child_obesity (accessed September 21, 2012)
  • 29. Active Living Research, Designing for Active Living Among Adults (San Diego, CA: Active Living Research, 2008), http://www.activelivingresearch.org/files/Active_Adults_0.pdf (accessed May 3, 2013); see also N. Durant, S. K. Harris, and S. Doyle, “Relation of School Environment and Policy to Adolescent Physical Activity,” Journal of School Health 79, no. 4(2009): 153.
  • 30. For more information on types of joint use programs, see ChangeLab Solutions, “Model Joint Use Agreement Resources,” last updated March 2009, http://changelabsolutions.org/publications/model-JUAs-national (accessed May 3, 2013); Opening School Grounds to the Community After Hours (Oakland, CA: ChangeLab Solutions, 2012), http://changelabsolutions.org/publications/CA-JUA-toolkit (accessed May 3, 2013); CPEHN, Unlocking the Playground.
  • 31.“Joint use agreements between cities and schools have been gaining popularity as local governments and school districts recognize the cost and space benefits of facility sharing.” Natalie Bell, “Cities, Schools Turn to Joint Use Agreements to Maximize Space and Minimize Costs: Five Model Cities Meet the Educational, Recreational and Cultural Needs of Community Residents,” Nation’s Cities Weekly, September 3, 2007, http://www.thefreelibrary.com/Cities,+schools+turn+to+joint+use+agreements+to+maximize+space+and…-a0168872213. See also 2012 Ariz Legis Serv Ch 14 (SB 1059) (West) (amending Ariz Rev Stat Ann §33–1551.)
  • 32. Baker et al., Liability Risks, 12, note 29. For more information regarding the use of recreational use statutes by public entities, see ChangeLab Solutions, Summary of Legal Rules Governing Liability for Recreational Use of School Facilities (Oakland, CA: NPLAN, 2010), http://changelabsolutions.org/sites/changelabsolutions.org/files/documents/Liability_RecUse_JU_FINAL_2010.03.19_revised_20111213.pdf (accessed May 3, 2013)
  • 33. See Tenn Code Ann §29-20-112 (West 2011)
  • 34. Baker et al., Liability Risks, 12, note 30.
  • 35. Baker et al., Liability Risks, 3, 13. Some states give possessors of land preferential treatment, lowering their duty of care to persons categorized as “licensees,” that is, persons who enter the property for their own purposes and not to provide a financial benefit to the owner. In states following this approach, residents playing basketball at a school playground open on holidays would be licensees.
  • 36. For a state-by-state summary of laws effecting joint use programs, see ChangeLab Solutions, “A Look at State Rules Affecting Joint Use Agreements,” last updated April 2010, http://changelabsolutions.org/publications/state-rules-JUAs (accessed May 3, 2013)
  • 37. See BlueCross BlueShield of Illinois, “Belvidere Family YMCA to Unveil Indoor ‘Imagination Playground,’ ” last updated February 3, 2012, http://www.bcbsil.com/company_info/newsroom/news/2012_02_03.html (accessed May 3, 2013). Research is also under way on integrating technology into playgrounds to increase active play. See, for example, Center for Computer Games Research, “User Modeling in Playware Physical Interactive Playground,” http://game.itu.dk/index.php/User_Modeling_in_Playware_Physical_Interactive_Playground (accessed September 21, 2012). Architects and builders are starting to use “active design” for homes and workplaces as well as playgrounds, to promote greener, healthier communities. See, for example, Paula Melton, “Architects Fight Obesity Epidemic Through Active Design,” Environmental Building News, February 1, 2012, http://www.buildinggreen.com/auth/article.cfm/2012/2/2/Architects-Fight-Obesity-Epidemic-Through-Active-Design (accessed May 3, 2013); R. Lopez, The Potential of Safe, Secure and Accessible Playgrounds to Increase Children’s Physical Activity (San Diego, CA: Active Living Research, 2011), 4, http://www.activelivingresearch.org/playgrounds (accessed May 3, 2013); L. J. Willenberg, R. Ashbolt, and D. Holland, “Increasing School Playground Physical Activity: A Mixed Methods Study Combining Environmental Measures and Children’s Perspectives,” Journal of Science and Medicine in Sport 13, no. 2 (2010): 210–216.
  • 38. See Peaceful Playgrounds, “Research,” http://www.peacefulplaygrounds.com/research.htm (accessed September 21, 2012). See also Vermont Departments of Health and Education & Action for Healthy Kids–Vermont, “Vermont Healthy Schools Resource: Physical Activity,” 4, http://healthvermont.gov/local/school/documents/Healthy%20Schools%20Resource_Activity.pdf (accessed May 3, 2013)
  • 39. See Department for Education and Skills (UK), “Primary Playground Development,” http://www.scssp.co.uk/documents/Sporting%20Playgrounds%20Booklet.pdf (accessed May 3, 2013)
  • 40. Boston Schoolyards Initiative, “Schoolyards & Outdoor Classrooms,” http://www.schoolyards.org/projects.outdoor.html (accessed September 21, 2012)
  • 41. Ibid.
  • 42. “Falls are the most common mode of playground injury and account for approximately 80 percent of all playground equipment-related injuries.” National SAFE KIDS Campaign, “Playground Injury Factsheet,” http://www.preventinjury.org/PDFs/PLAYGROUND_INJURY.pdf (accessed May 3, 2013)
  • 43. See Public Playground Safety Handbook, (Bethesda, MD: US Consumer Product Safety Commission, 2010), http://www.cpsc.gov/PageFiles/107329/325.pdf (accessed May 3, 2013). Some states have formally adopted the guidelines. See Pollack, et al., “Toward Environments and Policies,” 110 (noting that states adopting playground safety standards have effectively reduced playground injuries)
  • 44. M. Bossenmeyer, “Playground Liability: Accident or Injury,” Peaceful Playgrounds, http://www.peacefulplaygrounds.com/playground-liability-accident-or-injury.htm (accessed September 21, 2012)
  • 45. See ChangeLab Solutions, NPLAN, “Safe Routes to School: Minimizing Your Liability Risk,” 3.
  • 46. Mississippi is one such state. See, for example, Glover v Jackson State University, 755 So2d 395, 401 (Miss 2000) (school covered by liability insurance waives immunity up to the policy limits), appeal after remand, 968 So2d 1267 (2007). Georgia, on the other hand, follows the majority rule. See, for example, Dollar v Dalton Public Schools, 505 SE2d 789, 790 (Ga Ct App 1998) (school systems do not waive sovereign immunity by purchasing liability insurance). See generally R. D. Hursh, Liability or Indemnity Insurance Carried by Governmental Unit as Affecting Immunity from Tort Liability, 68 A.L.R. 2d 1437 (1959)
  • 47. In some cases, schools may cite “fear of liability” as a proxy for other concerns (e.g., extra maintenance costs, fear of vandalism, administrative burden). If that may be the case, addressing these other concerns is key. For example, the local park and recreation department could be asked to cover maintenance for extended playground hours. For other recommendations on how to address these issues, see CPEHN, Unlocking the Playground, 5–8.
  • 48. The local city attorney or county council may be able to provide such analysis.
  • 49. See CPEHN, Unlocking the Playground, 3–4 (discussing joint use program in Oakland, California that authorizes third party to run youth and community programs, and joint use program in San Diego County that covers both outdoor and indoor facilities); Boston Schoolyard Initiative, “Boston Schoolyard Initiative Recognized for Excellence in Getting Kids Active and Playful,” last updated October 1, 2009, http://www.schoolyards.org/about.news.php?action=display&pressrelease_id=690 (accessed May 3, 2013). For other examples of successful joint use programs, see Kaboom.org, “St. Petersburg, Florida: Play ‘N’ Close to Home,” http://kaboom.org/docs/documents/pdf/playmatters/Play_Matters_St.Petersburg.pdf (accessed September 21, 2012); Colorado Center for Community Development, College of Architecture and Planning at University of Colorado, “Learning Landscapes,” http://www.learninglandscapes.org (accessed September 21, 2012)
  • 50. CPEHN, Unlocking the Playground, 9–10.
  • 51. Pollack et al., “Toward Environments and Policies,” 106.

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